Simcha On The Side

The Chashukei Chemed discusses an interesting situation. A yeshiva elementary school built a hall as a way of earning money. The school administrators felt that they could not put the necessary time and energy into running the hall effectively, so the school board decided to sell the hall to private investors. When it was time for the first simcha, the guests all entered through the main entranceway of the building. The school administrators complained. “The use of the main entrance was never part of the contract. There is a side door that is perfectly functional. Please use that entrance for you simchos.”

The private investors argued, “When you ran the hall, all the guests went through the main entrance. The side entrance is not as nice and is really not appropriate for a simcha hall.”

Still the administrators stood firm. “When we were running the hall, it was our decision to let the guests walk through the main entrance, which is primarily used for our students. Now that a private enterprise is overseeing the hall, we are not comfortable with all the guests walking unsupervised through our building. Anyway, if you wanted to use the main entrance you should have specifically mentioned that fact in the contract. The side entrance leads directly to the simcha hall so we assumed you would use that entrance.”

One of the investors argued, “I just learned the daf (Bava Basra 64a–b). The Mishnah discusses a buyer who forgot to include access rights in his contract. For example, someone bought the rights to use a birdhouse in the middle of a field; however, the contract did not specify how the purchaser should access the birdhouse. The Chachamim say that the buyer loses out because of this oversight. He will now have to pay an additional sum of money for the rights to walk through the seller’s field to check on his birds.”

The administrator said, “That exactly proves my point. You did not specify the right to use the main entranceway in the contract. Therefore, if you want to use it, you should have to pay extra for that right.”

The investor said, “Wait, I didn’t finish. Rebbe Akiva argues on the Chachamim and states that the buyer automatically has rights to use the field to access his new birdhouse. It is included in the sale even if not specified. The halachah follows Rebbe Akiva. Similarly, the right to use the main entrance is automatically included in our purchase even though we forgot to specify it.”

The administrator responded, “Not so fast. The case of the birdhouse you mentioned is not analogous to this situation. You said the birdhouse was in middle of a field. There was no way for the buyer to access his new birdhouse unless he walked through the seller’s field. Obviously then, one could make the argument that access to the birdhouse was included in the sale. How did you expect the buyer to access his birdhouse? Was he expected to use a helicopter every time he wanted to check on his birds? In our situation, you have a way to use the simcha hall— through the side door. It is certainly not a given that access to the main entrance was included in the sale. In fact, I seem to recall that the Rema (CM 214:3) makes this very point. A buyer cannot say that a specific access route was included in the sale if there is an alternate one available.”

The investor argued, “It is true the Rema says that. But the Rema is discussing a situation where both routes are basically equivalent. At times, one may be preferable to the other; still, they are basically the same. Therefore, the buyer cannot demand a specific route or both routes. However, the Nachal Yitzchak says that if one route to the birdhouse is crooked and longer, the buyer may demand the shorter path. Similarly, the side entrance is near the refuse and not as nice. It is not a situation of separate but equal. Therefore, you have to let us use the nice main entrance. In situations such as this, when it is unclear what the terms of the sale were, we assume that the seller gives the buyer a complete package, which would include the use of the main entrance.”

The administrator argued, “Nevertheless, perhaps the regular terms of a sale do not apply to where a tzedakah organization is selling something as opposed to an individual. An individual can decide to be gracious with his sale; perhaps we do not apply that logic to an organization. Furthermore, one could make the case that the Vilna Gaon disagrees with the Nachal Yitzchak. It is therefore a situation of doubt, and you may not use the main entrance unless you pay for that right. However, if this issue is clarified further by the poskim and they decide that the use of the main entrance was included in the sale, I will certainly abide by that psak.” ™